Everyone Has the Right to the Protection of the Moral and Material Interests Resulting

Rocherieux Julien

Intellectual Property (LW 556)

Dissertation

Course Convenor: Alan Story

April 2002

The future of moral rights

5100 words

The justification of moral rights, as understood on the continent, comes from the notion that the work incorporates the personality of the author. This philosophical conception and its juridical consequences are considered as economically inefficient, politically protectionist and philosophically mistaken by the supporters of the copyright system.

All those objections can, however, be rejected. Thus, the purpose of this dissertation is to demonstrate that moral rights have a future outside the traditional continental countries. Indeed, “new” justifications prove that moral rights are useful in a modern economy and improve the copyright system, which is unable to protect efficiently the authors. Even if recent legislations in common law countries seem to be only “window dressing” and if international dispositions are disappointing, the struggle continues for the artists to have the value of their work recognised. Nonetheless, extension of moral rights is only possible if a realistic and moderate approach is taken, far from the “absolutist” speech of the continental doctrine.

“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” This article 27 of the Universal Declaration of Human Rights could be considered as the universal consecration of the moral rights or of the balance between “moral” and “material” interests. However, reality is far from this formal acknowledgement.

Moral rights, which can be broadly defined as the non-pecuniary rights of the author, have been recognised in continental Europe since the 19th Century. One century after the British Statute of Anne of 1709, which enshrined the protection of copyright within the laws of England (under the lobbying of the London publishers), a French law of 1793 recognised the concept of the right of the author as the “most sacred right of man”. Nevertheless, it is during the 1920s that several continental European countries began to adopt moral rights laws and, at the 1928 Rome conference for the revision of the Berne convention, proposals were put forward for the recognition of inalienable rights of paternity, integrity and disclosure. Far from being a “landslide victory” of the continental countries, the compromise draft adopted (which subsequently became the article 6bis) constitutes the first stage of one of the deepest conflicts in Intellectual Property.

The question of whether common law countries will in the future really adopt moral rights (or whether continental countries will have to give up those rights) is highly controversial and implicates economical, philosophical and political consequences. The purpose of this dissertation is clearly to take part in this conflict by demonstrating that moral rights have a future – not only because it is theoretically just and desirable (I), but also because it is practically possible (II).

I Theoretically just and desirable

A) The traditional philosophical justifications

The continental doctrine considers that the work incorporates the personality of the author. Therefore, when something happens to the work, that constitutes an attack on the person of the author himself. This philosophical axiom, which has been especially developed by Kant, is the basis of the whole theory of moral rights and makes it clear that the essential nature of moral rights lies in their independence from economic rights. The work is considered not as a common object but as the materialization of the freedom and the creativity of the author[1].

This special protection is also traditionally explained by the important contribution to society made by artists, which otherwise would often been unrecognised. A writer who feels secure that he will receive some credit for his work, or an artist who can rely on the continued existence of his sculpture, may find this background knowledge more conducive to creative activity. Indeed, for some authors, the non pecuniary reward, such as recognition and hope for immortality through preservation of the work, may be more important than immediate material gain[2]. It is interesting to notice that such arguments strongly resonate in the copyright heritage since they also mean that moral rights will improve the climate in which authors create and that those rights are a just reward for skill, labour and social “goodwill” (which are the main arguments for copyright). It is also relevant to notice that the purpose of Anne’s statute is “for the encouragement of learned men to write useful books” (and not to improve the profitability of the publishing industry) or that the progress of learning is achieved in the US constitution by awarding copyright not to investors but to authors (art I s VIII). The “common law paradox” is to recognise on the one hand the role and specificity of authorship and to refuse on the other hand, a full protection which would embody this specificity.

The Anglo-American doctrine often considers that moral rights are an excessive regard for the dignity of the author – the right to do what one wishes with one’s own property is also important[3]. The same argument of coherence could be objected to this doctrine: if those authors think that property gives an absolute right to the owner, then there is no reason to respect intellectual property at all, and especially no reason to respect copyright. It is a contradiction to express that moral rights are an obstacle for freedom but not copyright! Another argument is to say that the author himself in the French tradition is not free to sell those rights and waiver clause are in principle prohibited (the French doctrine explains traditionally that it would be a “moral suicide”[4]) by contrast with the copyright which can be sold by the author. This French position is based on the idea of “ordre public”: moral rights, like human organs or the right to vote cannot be sold. Nonetheless, courts are flexible and consider that this protective disposition must not be a burden on the authors. Therefore, precise and limited waiver clause are in fact accepted[5] (what the Anglo-American doctrine rarely notices in its critics…). Similarly, where a work is to be adapted from one medium to another, and certain changes are therefore inevitable, an implied waiver has been recognised by the courts. Moral rights are not contrary to freedom of authors. They have even for purpose to protect their freedom. The best example is given by the divulgation right (“droit de divulgation”): only the author can decide when his work is finished and can be made accessible to the public.

B) An answer to common law objections

The conflict is not only philosophical, it is also economic. Common law countries consider that their record or film industry could be severely handicapped by well-intentioned but essentially harmful legislation. Moral rights are clearly seen as an economic burden. Simon Newman[6] develops three main arguments to support this idea:

- the prohibition of waiver clauses means more work for continental record companies, in that they must seek authorial consent for adaptations more frequently, and thus incur greater expense – it is all the more expensive as it is very rarely the intellectual creation of a single singer/songwriter-producer, but more commonly an ensemble work in which a good number of people may be able to claim copyright.

- The way in which the integrity right is applied could make the adaptations simply impractical. This would appear to be of little benefit to anyone – the recording and publishing companies lose the opportunity to market a new product; song authors are unable to make cover versions, and the original composer finds his integrity right to be economically worthless.

- More generally, moral rights have a deleterious effect on the continental entertainment industry. Despite a strong cultural basis, France produces far less television programming than the UK, a nation of similar size and development. The French film industry, despite state support, produces few economic winners.

Another common argument could be added: moral rights have very few economic implications. They cannot be easily evaluated in economic terms or freely transferred. That is why they must be ignored.

Those four arguments are not really convincing. First, concerning the waiver clause, the increase of expense is a very small amount as compared with all other costs related to the work – realisation, marketing…etc. It is ridiculous to argue that Vivendi-Universal (which is… French) could face financial difficulties because of moral rights. By contrast, this necessary “dialogue” between authors and investors (concerning their integrity right especially) develops a permanent co-operation which is not deleterious to business dynamism at all, but which improves fair relationship between them.

Secondly, it is true to argue that the integrity right has to be flexibly applied. This point has already been underlined and the application made in the “continent” renders adaptations easily practicable. The French supreme court (“Cour de cassation”) explained in “Le dialogue des Carmelites” case[7] that an adaptation does not breach moral rights if it follows the “spirit” of the original work. Otherwise, the consent of the author has to be given. The area in which problems could arise was software because of the high number of authors. To prevent those conflicts, the French law of the 10th May 1994 limited the integrity right in this kind of work. The common law doctrine has celebrated this law as a victory of copyright; it could also be considered as a mere adaptation of the scope of moral rights and as the proof that a pragmatic point of view is more useful for the future of moral rights than a dogmatic application.

The third argument is a caricature. There is no demonstrated link between copyright and economic success or between moral rights and failure. The economic effect of moral rights is not significant and differences between countries have to be explained by other factors (fashion, creativity, role of the “majors”, language…etc.).

The fourth argument is a paradox. It is difficult to argue on the one hand that moral rights have no economic consequences and on the other hand that they constitute a burden. Besides, it is not because a right has a weak economic impact that it must be ignored. A strict utilitarian reasoning can lead to unfair and not desirable consequences: a large majority of Human rights (right to vote, to have a fair trial…etc.) does not have a clear “economic value” but constitutes the basis of our democracies.

Even if moral rights had a cost, those expenses are compensated by the advantage they confer to the market. Indeed, moral rights help assure the public the works it has come to associate with a particular author, are that author’s genuine product. D. Vaver writes[8] that a book labelled “by Stephen King” is different from a book labelled “by Enid Blyton”. The attributions function like trade marks: they tell the public (and the market) that each book has particular qualities. Attribution and integrity rights therefore help to bring the author’s name before the public and help to assure that the work is an authentic product, vouched for by the author[9].

The second type of argument is political. With regard to GATT, it is seen as vital that France and other countries retain their moral rights laws, because they are an important weapon in the struggle to protect the expression of national identity, something that is threatened by the US approach to trade[10]. In other words, moral rights are protectionism. Today, the struggle concerns the respect of moral rights in the film industry. Valenti, president of the Association Picture of America, explained to the American congress that moral rights are a “virus” which could destabilise the American system of production. Claude Brule, president of the French “Societe des auteurs et compositeurs dramatiques”, answered by holding that copyright is a real confiscation. Behind this tension, it is not clear that a link can be drawn between moral rights and protectionism. Moral rights have merely become a “symbol”, a stage in the cultural “opposition” between France and the USA.

Even if it can be proved that continental countries use moral rights as a “protection shield” (how?), can common law countries reproach this attempt of cultural preservation? There is a public interest in having a continuous record of one’s culture. This interest could be pursued by those in government whose brief is the preservation of the country’s cultural heritage; but, in an era devoted to less government, this goal may equally be pursued by giving authors and their estates some control over their works[11].

The status of moral rights as a ground for action in the UK came only with the 1988 Copyright Act. Previously, moral rights in copyright had received limited protection through a variety of measures and principles laid down by the courts. The third kind of argument is directly linked with this observation: moral rights are already well protected by common law principles; therefore, a new legislation would be useless and dangerous. Tort law (principally defamation and passing off) and contract law are thus regarded as a simple and effective protection for authors.

This argument is interesting because it does not deny the importance of the protection of moral rights and even recognises indirectly first the fairness of those principles and then the compatibility between moral rights and the common law system. However, an analysis of the previous protection in the UK and USA makes apparent a weak protection due to a purely economic reasoning.